WTC Jury Must Answer $3.5 Billion Question

After 10 weeks of conflicting testimony from dozens of witnesses and hundreds of exhibits involving technical policy language that could baffle the most seasoned insurance executive, the $3.5 billion World Trade Center coverage dispute is scheduled to be handed over to a jury this week.

Now its up to the jurorsseven men and five women, none of whom were familiar with the arcane world of insurance policy terms and conditions before this trialto make heads or tails out of the highly complicated and often-contradictory evidence presented before them.

Last week, attorneys from both camps put on their closing arguments. Herbert Wachtell from the New York law firm Wachtell Lipton Rosen & Katz, the lead attorney for WTC leaseholder Larry Silverstein, argued that the evidence shows the 13 WTC insurers are saying they were bound to a “Wilprop” form issued by Mr. Silversteins brokerage firm, Willis Group, simply because they want to minimize their payments.

Mr. Wachtell tried to minimize the damage that Mr. Silverstein's risk manager, Robert Strachan, inflicted on Mr. Silversteins case. Jurors heard that Mr. Strachan faxed a Wilprop form on Sept. 12, 2001the day after the terrorist attackto GMAC, which lent $563 million to Mr. Silverstein for his WTC lease, and to the WTC's owner, the Port Authority of New York and New Jersey.

Furthermore, on his fax, Mr. Strachan had scribbled “This is it” next to Wilprops occurrence definition, which would interpret the WTC's destruction as a single event with a coverage limit of $3.5 billion. Mr. Strachans action that day, insurers argued, helps prove that Wilprop was the governing form.

However, Mr. Wachtell countered, the evidence shows that in the midst of turmoil at Mr. Silverstein's offices the day after 9/11, Mr. Strachan was pressured by GMAC and Port Authority representatives to “send them something.”

He also told jurors repeatedly that Timothy Boyd, the Willis broker responsible for securing WTC coverage, e-mailed Mr. Strachan a copy of a Travelers form (which is more vague on its definition of “occurrence,” and which could be interpreted to pay out some $7 billion for two events), but that Mr. Strachan couldnt receive it because the file size exceeded Mr. Strachans Yahoo e-mail account limit.

Mr. Wachtell reiterated his position that Mr. Boyd had switched to a Travelers form after Travelers had insisted that its form be used for the entire coverage. He also argued that Lloyd's of London insurers had agreed to waive the policy forms wording when they signed onwhich, he claimed, allowed Mr. Silverstein to decide later what form would apply.

Mr. Wachtell added that none of the 13 insurers made any explicit notations requiring Wilprop to be the policy form. After 9/11, “everybody's got a story,” Mr. Wachtell said, but before the attack, “nobody bound these insurers to Wilprop.”

However, on April 15, insurers presented their side of the story, rebuking Mr. Wachtell's remarks.

Barry Ostrager from the New York law firm Simpson Thacher & Bartlett, the lead attorney for Swiss Reinsurance, told jurors there was no final policy form in place before the terrorist attack and that the form that governed Swiss Res coverage at that time was indeed Wilprop. But he said that after 9/11, attempts have been made by others to switch the form to the one from Travelers.

The switch to a Travelers form is a story that Willis put together to maximize the potential return for its client, Mr. Ostrager told jurors. He also reminded the jury how Fenn Harvey, a Willis wordings expert, had testified that as long as his client wasnt doing anything illegal, he would “say anything for them.”

Mr. Ostrager also reminded the court that Mr. Harvey had tried to send a Travelers form to Allianz, which had already issued its WTC coverage policy using its own form.

Additionally, Mr. Ostrager focused on Swiss Re's underwriter, Daniel Bollier, who testified that he never knew there was any switching of the policy form from Wilprop until he received the “Notice of Loss” on Sept. 24, 2001.

Mr. Ostrager told jurors that he believes Mr. Bollier was a credible witness, but that if jurors dont believe Mr. Bollier, then they can go ahead and vote that Swiss Re didnt bind on Wilprop. But if jurors do find Mr. Bollier credible, they have to find that Swiss Re did bind on Wilprop.

Mr. Bollier, Mr. Ostrager reminded jurors, had sent a binding slip for Swiss Re based on Wilprop on July 9, 2001 that was accepted by Willis on July 18. Mr. Ostrager reiterated there was “never any documentation” that shows Mr. Bollier receiving a Travelers form as a new valid governing form.

Mr. Ostrager also reminded the jury about Mr. Silversteins risk manager. He noted that in addition to faxing Wilprop to GMAC and the Port Authority the day after the terrorist attack, he had written personal notes in the aftermath of 9/11, “WTC underinsured.”

Mr. Strachan, Mr. Ostrager said, has been testifying that he didnt know about the Travelers form, so Mr. Strachan's actions were based on the actual information that he had at the time.

Reproduced from National Underwriter Edition, April 16, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.

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WTC Jury Must Answer $3.5 Billion Question

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